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Rainbow Ezung Vs. Mhao Lotha and ors. - Court Judgment

LegalCrystal Citation
CourtGuwahati High Court
Decided On
Case NumberElection Petn. No. 4 of 1983
ActsRepresentation of the People Act, 1951 - Sections 123
AppellantRainbow Ezung
RespondentMhao Lotha and ors.
Appellant AdvocateP.K. Goswami, A.K. Bhattacharyya, J.M. Choudhury and S.N. Sarma, Advs.
Respondent AdvocateB. Gupta, P.C. Kataki, D.C. Goswami, D.K. Bhattacharyya, D.N. Choudhury, A.K. Phukan, R. Gogoi, A. Roy and S.K. Roychoudhury, Advs.
DispositionPetition dismissed
- - bhagwandas, air 1977 sc 813. (2) so a grave and heavy onus rests on the accuser to establish it by clear, cogent and reliable evidence beyond reasonable doubt. first, even strong suspicion would not be sufficient; rao, (1968) 40 elr 390 (sc). (5) oral evidence has to be judged with greatest care as very often the evidence is of partisan witnesses like workers, agents, supporters and friends who have to be regarded as highly interested. anand sharma, air 1984 sc 621, wherein it has been stated in para 18 that allegation regarding corrupt practices must be 'very strongly and narrowly construed to the very spirit and letter of the law'.it was further pointed out that in order to constitute corrupt practice it must, inter alia, clearly appear from the allegation that the corrupt..... b.l. hansaria, j. 1. 4 (four) candidates were in the fray in this election from no. 38-wokha assembly constituency in the state of nagaland. the petitioner was a candidate of congress(i), whereas respondent no. 1 (the respondent, hereinafter) had contested as a naga national democratic party (nndp) candidate. the two others, namely, pankathung and khyochamo, were independent candidates. in the battle of hustings, which had taken place on 10-11-82, the respondent having secured 2693 out of 7918 valid votes was declared as elected. the nearest rival was the petitioner who had to his credit 2575 votes. the difference was thus of 118 votes.2. the election of the respondent was challenged on various grounds in this petition. there were allegations, inter alia, of (a) improper acceptance of.....

B.L. Hansaria, J.

1. 4 (Four) candidates were in the fray in this election from No. 38-Wokha Assembly Constituency in the State of Nagaland. The petitioner was a candidate of Congress(I), whereas respondent No. 1 (the respondent, hereinafter) had contested as a Naga National Democratic Party (NNDP) candidate. The two others, namely, Pankathung and Khyochamo, were independent candidates. In the battle of hustings, which had taken place on 10-11-82, the respondent having secured 2693 out of 7918 valid votes was declared as elected. The nearest rival was the petitioner who had to his credit 2575 votes. The difference was thus of 118 votes.

2. The election of the respondent was challenged on various grounds in this petition. There were allegations, inter alia, of (a) improper acceptance of the nomination paper of the respondent: (b) irregularity in issuing of postal ballots; (c) some irregularity in counting, and (d) canvassing against election law. The main attack is, however, on the commission of various corrupt practices. A number of issues were framed on the basis of the pleadings of the parties. Of these, the following only were ultimately pressed : --

'X(c)(i). Whether on 25-10-82 one Kg. of pork (meat) was distributed to every house in the Pongitong village by Shri Chithungo and Shri Evomo under the supervision of the election agent of the respondent No. 1 and with the consent of the respondent No. 1 in order to solicit votes for the respondent No. 1?

(ii). Whether Shri Chithungo and Shri Evomo were agents/workers of the respondent No. 1, as alleged?

X(f). Whether on 6-11-82 the respondent No. 1 and/or his election agent arranged a procession of electors comprising not less than 3000 people in Wokha town and whether after the said procession the respondent No. 1 and/or his election agent offered a feast to the said processionists with the request to vote in favour of respondent No. 1 ?

X(g). Whether on 20-10-82 the respondent No. 1 and/or his election agent distributed one Kg. of pork (meat) to each of the 250 houses of Longsa Village with the request to the villagers to cast their votes in favour of respondent No. 1?

X(i)(i). Whether on 19-10-82 Shri Woremo Humtseo came to Pongitong Village with the workers of the respondent No. 1 in the vehicle bearing number MLG 2429 and requested the villagers of Pongitong village who were members of 'HUMTSEO' community to vote for respondent No. 1 in consideration of his belonging to the said community?

(ii). Whether Shri Woremo Humtseo was a Government servant, namely, Assistant Registrar of Co-operative Societies and whether vehicle No. MLG 2429 is a Government vehicle?

(iii). Whether respondent No. 1 also came to the Pongitong village and made a similar appeal?'

'XI(a). Whether the respondent No. 1 has submitted an incorrect account of his election expenses showing a sum of Rs. 1,165.65 to have been spent by him?

(b). Whether the respondent No. 1 hired vehicle No. MLX 355 from the Nagaland State Transport on payment of Rs. 294/- on 25-10-1982 and whether the same has not been shown in the account of election expenditure submitted by him?

(c). Whether the respondent No. 1 used vehicles Nos. MLK 1528, MLK 2923, MLK 2660, MLK 7495, DED 1490 in course of his election duty?

(d). Whether the respondent No. 1 purchased petrol, high speed diesel oil etc. from M/s. P. Ezung & Sons, Wokha town for the said vehicles to the extent of Rs. 10,186.86 during the period from 16-9-82 to 10-11-82?

(e). Whether respondent No. 1 incurred expenditure beyond the limit fixed by law?'

3. Before the evidence on the aforesaid issues, all of which are related to corrupt practices, is examined, it will be apposite to inform ourselves with the law relating to burden of proof etc. in this regard. As both the sides broadly accepted the following principles mentioned by me in Bakin Pertin v. Sobeng Jayeng (Election Petn. No. 2 of 1980 disposed of on 3-4-81), which were culled from the decisions of the Apex Court, I would rest contest by stating those. These are : --

'(1) Allegation of currupt practice is quasi-criminal in nature, or is substantially akin to criminal charges, because it not only vitiates the election but also disqualifies the person concerned from taking part in it for a considerably long time, or may extinguish the men's public life. Razik Ram v. J.S. Chouhan, AIR 1975 SC 667, D. Venkata Reddy v. R. Sultan, AIR 1976 SC 1599, Amolak Chand v. Bhagwandas, AIR 1977 SC 813.

(2) So a grave and heavy onus rests on the accuser to establish it by clear, cogent and reliable evidence beyond reasonable doubt. It cannot be established by a mere balance of probabilities. Razik Ram (supra), Nizamuddin v. Narbada Prasad, AIR 1975 SC 1909, M. Narayana Rao v. G. Venkata Reddy, AIR 1977 SC 208, K.M. Mani v. P.J. Antony, AIR 1979 SC 234, N.C. Zeliang v. Aju Newmai, AIR 1981 SC 8 and R.P. Singh v. R.B. Jha, AIR 1976 SC 2573.

Shri Das has sought to make out some distinction between 'beyond reasonable doubt', which expression has been used in some of the aforesaid cases, and 'beyond all reasonable doubt', because in some of these cases it has been stated that the charge has to be proved 'beyond all reasonable doubt', and in Nizamuddin it had been observed in para 13 that the charge has to be proved 'by evidence which leave little room for doubt even though it may not be necessary to prove the allegations beyond all reasonable doubt as in a criminal prosecution'. I would think that no difference can really be read between the different expressions used in these cases; and if these have introduced any doubt the same can be said to have been removed by Venkata Reddy in para 4 of which it was stated that 'The. allegations of corrupt practices being in the nature of quasi-criminal charge the same must be proved beyond any shadow of doubt'. Thus the charge of corrupt practice has to be established not by a mere preponderance of probability but by a higher degree of assurance and judicial certitude as is needed in a criminal action.

(3) Two corollaries follow from this. First, even strong suspicion would not be sufficient; Narendra v. Manikrao, AIR 1977 SC 2171 (Para 11); and secondly, benefit of doubt belongs to the returned candidate, vide, Abdul Hussain Mir v. Shamsul Huda, (1975) 4 SCC 533 :(AIR 1975 SC 1612) (Para 5).

(4) There is, however, one difference between a criminal action and an election petition. The same is that the election trial does not give liberty to the other side to keep mum, and the charge has to be examined on appraisal of the evidence adduced by both the sides, M. Narayana Rao, (AIR 1977 SC 208) (supra) and M. Chenna Reddy v. V. R. Rao, (1968) 40 ELR 390 (SC).

(5) Oral evidence has to be judged with greatest care as very often the evidence is of partisan witnesses like workers, agents, supporters and friends who have to be regarded as highly interested. So corroboration from independent source, untying circumstances, or contemporaneous and unimpeachable documents is sought for as a matter of prudence to lend assurance to the verbal testimony. D. Venkata Reddy, (AIR 1976 SC 1599) (supra), Kanhaiyalal v. Manna Lal, AIR 1976 SC 1886, Rahim Khan v. Khurshid Ahmed, AIR 1975 SC 290 and Lakshmi Raman v. Chandan Singh, AIR 1977 SC 587.

(6) Mere consistency in the evidence may not weigh, as tutored witnesses are capable of being consistent. So, if the evidence is fraught with inherent improbabilities and replete with unnatural tendencies, Court may reject the same. D. Venkata Reddy (supra).'

4. Let the five issues pressed before me be now examined seriatim Issue-X(c)-Pork distribution at Pongitong :

The pleading in this regard finds place in para 6(3) of the petition which reads as below : --

'6(3). In the evening of 25-10-82, 1 (One) Kg. of Pork (meat) was distributed to every house in the Pongitong village within 38-Wokha Assembly Constituency, by Shri Chithungo and Shri Evomo of the same village, who are/were agents/workers of Respondent No. 1, under the supervision of election agent of Respondent No. 1 and with the consent of the respondent No. 1 and they requested/solicited the villagers to cast votes in favour of respondent No. 1. This act of bribery materially affected the result of the election'.

5. By referring to these averments Shri Gupta for the respondent first submits, and rightly, that no departure should be allowed in alleging the presence of the respondent in Pongitong at the time of aforesaid distribution. The evidence of the petitioner, however, discloses that according to his witnesses, Mhao himself was present in Pongitong which is not even the averment. According to the learned Counsel of the respondent this had to be done because dehors this even consent of the respondent would have been difficult to establish which was absolutely necessary as J. Mhao had admittedly appointed no election agent and as there is no evidence at all of any material effect on the result of the election due to the above distribution. In the petition, Renthungo was indicated in some paras as the election agent of the petitioner, but ultimately it transpired that he had not been so formally appointed. Despite this, the submission of Shri Goswami for the petitioner has been that as Renthungo had done various acts on behalf of the petitioner and had taken much interest in the electioneering by having worked as a proposer of Mhao so also counting agent and having taken some steps earlier for correction of electoral rolls by getting names of some supporters of Mhao included in the electoral roll, he had virtually acted as the election agent of the respondent. But the law does not know of any 'virtual election agent'; either one is the election agent, or not. In this connection, Shri Gupta has further drawn my attention to averments in paras 6(13) and 6( 14) of the petition wherein after speaking of Renthungo as a worker of the respondent or as youth worker of NNDP, it has been stated that the acts alleged therein had been done with the consent of the election agent. This would show that Renthungo was not the election agent even as per the pleading of the petitioner. Shri Goswami contends that in every Lotha village there are many Renthungos as deposed to by P. W. 1. That may be so, but if any person other than the 'virtual election agent' was meant when some allegations were made against Renthungo by name, it was the duty of the petitioner to make that position absolutely clear. Shri Gupta has referred in this connection to a recent decision of the Supreme Court in Daulat Ram v. Anand Sharma, AIR 1984 SC 621, wherein it has been stated in para 18 that allegation regarding corrupt practices must be 'very strongly and narrowly construed to the very spirit and letter of the law'. It was further pointed out that in order to constitute corrupt practice it must, inter alia, clearly appear from the allegation that the corrupt practices alleged were indulged in by (a) candidate himself, (b) his authorised election agent or any other person with his express or implied consent. A reference to the petition, however, shows that in some of the paragraphs, to wit, paras 6(6), 6(7) and 6(11), it was stated that the acts mentioned therein were committed by (or with the consent of) the respondent 'and/or his election agent'. The petitioner was thus not sure as to who had actually committed the alleged act. This would not satisfy the strict-requirement of an election petition as held in Daulat Ram (supra). This apart, the pleadings would also become vague as per Ramanbhai v. Jasvant Singh, AIR 1978 SC 1162, where also it was stated in the election petition that certain acts were committed by the returned candidate and/or his election agents and/or some other persons. (See paras 2 and 9).

6. With this let us go to the evidence. The allegation in this regard is that the respondent had caused distribution of (about) 1 kg. of pork to each of the 200 and odd houses in Pongitong after killing some pigs in the house of R. W. 3 Khymemo. The distribution was mainly through Evomo RW 5 and one Chithungo, though some other workers of the respondent had also played their part in the same, all of whom solicited votes while giving pork. The distribution was followed by a meeting in the village which was addressed by the respondent and aforesaid Renthungo. The allegation has been totally denied by the respondent Shri Mhao Lotha. According to him he had not visited Pongitong at all on 25-10-82. In support of the rival cases a number of witnesses have been examined.

7. In so far as the petitioner is concerned, he had known about the distribution from the village Chairman Tselamo (P. W. 5). Of course, nothing was given to the petitioner then in writing, nor had he taken down any note of the reporting. The evidence of the petitioner is therefore not of much avail in this regard. He, however, produced the aforesaid village Chairman and three more witnesses, namely, Nrithung P. W. 2, Estomyimo PW 6 and Meyimo P. W. 7 to support him. Though PW 4 was also a witness on this allegation, he being not present when pork was allegedly distributed and he having derived knowledge about the same from his daughter who had not been examined in the case, his evidence cannot assist the petitioner.

7A. P. W. 2 Nrithung was closely connected with the petitioner in his electioneering inasmuch as the former had worked as both the polling agent and the counting agent for the latter. Though PW 5 did not belong to any party and he being a village Chairman his words should have carried weight, there is a lacuna in his evidence. The same is non-production of the proceeding book of the Village Council in which the matter was contemporaneously discussed as per this witness. According to Shri Goswami this is for the reason that the Council had not taken any formal resolution in this regard. Even so, the proceeding book must have recorded the meeting of the Council if a formal meeting was held at all. PW 6 admitted in cross-examination that though he had visited Wokha town 2/3 times after distribution of pork and had met party officials there, nothing was discussed about this matter in party circle, nor was it thought necessary as how to counteract the effect of distribution of pork by the respondent. Indeed, according to him he had not then told about it even to the petitioner though he had met him. Similar is the statement of PW 7 who admitted that he had not reported about the distribution to anybody. Further, according to him, the distribution was before Woremo and Renthungo who had come to the village. Now, as will be seen later, according to the petitioner and his other witnesses these two persons had come to Pongitong on 19-10-82 when they had solicited votes of persons of Humtseo clan in favour of the respondent who also belongs to that clan. The distribution of pork, is, however, alleged to have taken place on 25-10-82, and as such it was after the aforesaid visit of Woremo and Renthungo, and not before as stated by P. W. 7. Shri Goswami contends that Woremo and Renthungo might have visited the village again after 25-10-82, but that is not the case of the petitioner in so far as the present proceeding is concerned.

8. Relying on these infirmities it is urged by Shri Gupta that the heavy burden which lay on the election petitioner has not been discharged. Had the matter rested here, two views could have perhaps been reasonably taken. But the respondent has produced Khymemo as RW 3 who has denied about killing of any pig in his house. His son RW 7 supports him in this regard. Then there is Evomo and Chichamo as RWs 5 and 6 to deny any distribution by them as alleged by the petitioner and his witnesses. Further, there is RW 2 Yanpunimo and Nyamo (A Gaonburah) RW 4 to deny any distribution of pork by Mhao or his supporters in Pongitong during the relevant period. Renthungo (RW 30) is also there to deny the entire episode, so also the respondent as RW 1.

9. Regarding the evidence of these witnesses, the first submission of Shri Goswami is that they had to take the stand which they did to save their own skin. It is further urged that most of these witnesses have made themselves unbelievable by denying consumption of pork either during the entire election period or at all. Another contention is that it is unbelievable that Mhao would not have personally gone to Pongitong after filing of his nomination papers (as is his evidence) as there were nine villages in the constituency and Pongitong was an important village where 523 valid votes were cast of which the respondent could obtain 198. The close political or electoral affinity of some of these witnesses with Mhao is also brought to my notice.

10. Apart from these general criticisms, it was urged about RW 2 that he has made himself an unreliable witness by going even to the extent of saying that PW 2 Nrithung was neither a polling agent nor a counting agent of the petitioner which aspects are vouchsafed by documents on record. It is submitted by Shri Goswami that if a witness could lie on such a matter, no credence should be placed on his other evidence. Shri Gupta counters this submission by saying that as the petitioner had two polling agents, RW 2 might not have noticed Nrithung inside the polling station, as one agent had to remain outside to 'shepherd' the voters inside. RW 2 is ex facie a non-interested witness as he had worked for one of the independent candidates. It may, however, be stated that as he was moving about to different villages of the constituency and used to be away from the village from morning till evening while on election tour, he might not have known as to what had taken place in the village in his absence. RW 3's past bad record is first mentioned by Shri Goswami to shake the credit-worthiness of this witness. That conviction was, however, for recovery of explosive substance, and in the political turmoil which had seen the State of Nagaland this factor should not weigh much with the Court in judging RW 3's reliability as a witness. Of course, his statement that though meals were provided by the NNDP (which, as per his first version was to the entire villagers but subsequently it was sought to be confined to the supporters of the party) but without any pork, does suggest some tendency to keep away from pork. The denial of serving pork would not have been of much importance but for the fact that in the part of the country with which we are concerned pork is an accepted item of food and people are too accustomed to it, RW 4 Nyamo had worked as the polling agent of the respondent. This witness was also moving in and out of the village and used to be away from morning till evening when going out of the village. RW 5 had also worked for Mhao and comes from Humtseo clan which is the clan of the respondent. His interest in the returned candidate is, therefore, apparent. RW Chichamo did not cling to the truth fully because his evidence that he had not taken pork at any point of time is as difficult to accept as non-consumption of fish by an Assamese or a Bengali. He was also a worker of Mhao. He denied that Mhao had visited Pongitong at all during election period whereas Mhao himself stated that he had gone to that village on 8/9th Oct., 82. Though it is not very clear as to what was meant by the witness by the expression 'election period', Shri Goswami submits that as Mhao had started his election campaign from July, 82, the expression cannot be confined to the period from the date of filing nomination paper to the date of poll. I do find merit in the submission. As to RW 7 the contention of Shri Goswami is that he used to stay mainly at Wokha town during the election period, and as such he cannot claim much knowledge about the happenings of Pongitong village. This apart, his statement that he had not taken pork during election period could have been made, according to the counsel to keep himself away with anything to do with pork, as it is difficult to believe that though the witness had consumed pork before the election and after the election, he had not done so during the election. Renthungo, RW 30 is the last witness on this issue. He was the proposer of Mhao, so too a counting agent. Though according to the petitioner he was also an election agent, this contention is not ultimately pressed as no document evincing his appointment as election agent was available. The submission, therefore, was that though Renthungo had not been formally appointed as the election agent, he had discharged almost all the functions of this post as he had taken various steps for the respondent during the election period and even prior to that. Nothing much, however, turns on these steps, as because of these he cannot be regarded as an election agent. The further submission about this young lawyer is that despite his noble profession he has not come out with the full truth. This is sought to be brought home by referring to the part which Renthungo had played in the procession which was admittedly taken out at Wokha town on 6-11-82. Though Mhao himself admitted that Renthungo was playing an active part in this procession having taken his seat in a vehicle which was fitted with loud speaker, Renthungo would ascribe to himself a back-seater role, as according to him, he was treading the paths of Wokha town as a member of the procession being at its rear. There is undoubtedly a discrepancy in the evidence of RW 1 and this witness as to the latter's part in the aforesaid procession. The statement of Renthungo in having ascribed a passive role to himself in the electioneering cannot, therefore, be fully accepted.

11. The position which thus emerges is that there is oath v. oath. Witnesses of both the sides are by and large interested. Nobody's evidence is so flawless or confidence inspiring as to fully rely on it. There is a great departure in pleading and proof, as even Mhao is brought to Pongitong which is not even the case in the petition. There is no contemporaneous record or document to assist the petitioner; nay, the one (Ext. P/16 dt. 11-11-82) does not mention of it, which is greatly emphasised by Shri Gupta, though Shri Goswami submits that this exhibit being in the nature of a general complaint by all the four Assembly candidates of Wokha district, one cannot, and should not, except a whole catalogue of detailed grievances in it which does mention of rampant bribery in para 9 as a strategy of NNDP. Shri Goswami does have a point here, but on the basis of theaforesaid scanning of oral evidence it has to be held that the petitioner has failed to establish the allegation of pork distribution at Pongitong as an act of corrupt practice beyond reasonable doubt. So, I answer Issue No. X(c)(i) against the petitioner, though (c)(ii) in his favour, as Mhao himself admitted Chithungo and Evomo as his workers. But the lethality of the issues lies in its first part, and not the second.

12. Issue No. X(f)-- Feeding the processionists on 6-11-82 at Wokha The allegation in this issue is that on 6-11-

82, the respondent and/or his election agent

had arranged a procession at Wokha town

and a feast had been thrown to the

processionists afterwards with a request to

vote for the respondent. Taking out of a

procession on 6th at Wokha is not denied.

The case of the returned candidate is that the

procession was a party affair and was meant

to advance the candidature of all the four

assembly candidates, and that the

processionists were given meals by the party.

There is some dispute about the number of

persons, who had joined the procession-- the

case of the petitioner being that more than

3000 persons had joined the same whereas

according to the respondent only 1000 had

done so. That, however, is not material. The

first question is: Was the procession for the

benefit of all the four candidates? More

important is the question as to who had

financed the feast. On the first aspect, the

petitioner's case merits acceptance for these

reasons :

(1) In Ext. P/17(2) dt. 1-11-1982 which is a letter written by Mhao himself seeking permission of the authorities to take out the procession, it has been clearly stated that the party was contemplating to do so for '38-Wokha Assembly Constituency'. It may be mentioned that the Wokha Divisional Unit of NNDP was looking after three other Assembly constituencies, namely, Tiyi, Sanis and Bhanderi.

(2) In the permission accorded (Ext. P/17(1) dated 2-11-82), it has been mentioned that Mhao was organising the procession. Of course, the name of Mhao might have been mentioned as an organiser because he had applied for the permission, and as per the counter case this had been done as Mhao was the Joint Secretary of the State Unit at the relevant time, and was incidentally present at Wokha town when permission was sought. But as the procession was an affair of the Divisional Unit, an office-bearer of the State Unit was not required to seek permission.

(3) Had it been that the procession was meant for advancing the cause of all the candidates of the district, it is but natural that other candidates would have also been present in the procession. As a marriage procession cannot take place without the bridegroom, so also an election procession taken out to project the image of a candidate could not have been there without the candidate being present in the procession. The absence of other candidates in the procession is admitted by Mhao himself. This has received support, if any is needed, from PW 14 M. Murry and PW 15 N. L. Odyuo who were the two (of the remaining three) candidates of NNDP of the district. This being the position, the assertion of RW 25, the Chairman of the Wokha Divisional Unit, and RW 31 the Secretary that the procession was meant for advancing the prospect of all the four candidates of the district cannot be accepted.

13. The above would not mean that the procession had been organised by Mhao in his individual capacity. Here, we have the statement of none else than PW 16 Shri N. Kinghem, in whose testimony great reliance has been placed by the petitioner to substantiate his allegation of exceeding the limit of the election expenditure to which we shall come later, that the procession was a party procession but was conducted only for Wokha town constituency. It may be stated that in Ext. P/17(2) also it has been stated that the party was likely to stage the procession.

14. On these broad facts coming out from contemporaneous documents, the mouth of the respondent, important party functionary PW 16 and related candidates, I do not deem it necessary to burden the judgment by analysing the evidence led by both the sides as to whether the procession had consisted of persons only of Wokha Town Constituency, or there was a sprinkling of persons from Sanis, Tiyi and Bhanderi constituencies also. Even if a party takes out a procession for one constituency, it may invite person from other parts to ensure a good show.

15. It having been accepted by me that it was a party affair, it is but natural that the party must have made some arrangement to offer snacks, or call it meals, to its workers/supporters who had paraded the high and low streets of Wokha town from early hours of 6-11-82 till afternoon of the day. Any party conscious of its obligation towards its workers must have made some arrangements to take care of stomachs which must have become empty after marching for 5/6 hours in the procession. Feeding workers of the party after such a strenuous procession cannot be regarded as an act of bribery. Offering of meals in these circumstances has also to be regarded as a part of ordinary hospitality and it cannot be equated with bribery. Reference may be made in this connection to T.N. Angami v. Ravoleu, AIR 1972 SC 2367 (para 17) and Raghunath Misra v. Kishore Chandra, 17 ELR 321 (349) : (AIR 1958 Orissa 260 at p. 272).

16. This is not all. The evidence about the feast having been given or arranged by Mhao is unsatisfactory, as this conclusion was drawn by the witnesses of the petitioner (PWs 2, 13 and 23) as they had seen the processionists taking meals in Mhao's house. Now, this house being only about 100 feet away from the party office, it is quite likely that the 3000 and odd people, who had joined the procession according to the petitioner and who were fed, had spread up to Mhao's house while taking their meals sitting or standing.

17. Because of all the above, I answer this issue against the petitioner as he has failed to establish the same even by the standard of preponderance of probabilities.

18. Issue No. X(g)-- Pork distribution at Longsa.

An allegation similar to the one relating to Pongitong also finds place about village Longsa, where according to the petitioner, the respondent and/or his election agent had caused distribution of 1 (one) kg. of pork to each of the 250 houses of the village with a view to obtain votes of the villagers. This was on 20-10-82. This part of the case of the petitioner finds support from PW 8 Tsanso, PW 9 Yilano, PW 10 Yantungshan and PW 13 Estorhomo. The pigs were allegedly killed in RW 11 Lenthio's house and they were five in number, including one of Lenthio. According to PW 8, he had been given the pork by Rholomo RW 14, whereas PW 13 has involved Zuthungo RW 16 in the matter. PWs 9 and 10 speak about one Yikhoo or Yikhakho in the distribution. To believe PW 13, who is the Chairman of the village Council, Mhao was subsequently met to know as to why such an act had been committed by him and indeed the members of the village Council informally met in the house of the witness where Mhao was called. The stand Mhao took was that he had committed no wrong in distributing pork, and on such a stand being taken by Mhao, who was far superior in status to that of the witness, nothing further was done.

19. The respondent has totally denied the allegation. According to him, he had not gone to Longsa village on 20-10-82 though he had visited the same on other occasions. It may be pointed out that Mhao hails from this village. The respondent has produced the aforesaid Lenthio, Rholomo, Zuthungo, apart from Renthungo who was also involved in the matter, to satisfy the Court about the falsehood of the allegation. This apart, two Gaonburahs of the village, namely, Lithungo RW 8 and Ezung RW 12 have also entered the witness box to deny the distribution of any pork by the respondent as alleged. Sopono RW 10, a polling agent of the independent candidate Khyochamo, is also there in support of the respondent's assertions.

20. There is thus sworn testimony on each side. The question is which evidence inspires more confidence, and whether after weighing the statements made by the witnesses of both the sides can it be said that the petitioner has been able to establish his allegation beyond reasonable doubt, PW 1, the petitioner, had admittedly no direct knowledge in the matter and he had learnt about the alleged distribution from the Chairman of the Longsa village, who had acted as the counting agent of the petitioner and was seen taking keen interest in the proceedings of the case as he was found present in the Court room on many occasions when the witnesses of the respondent were giving their evidence. PW 8 had also worked for the petitioner. His admission in cross-examination is that he had not reported about the matter to anybody including the petitioner whom he had met during the election period, or to the Area of Village Council, though the act of distribution was regarded improper because of which he had refused the pork once but accepted on being approached again and on being told that the return of raw meat was not proper as per Naga custom. This had led to the criticism that the allegation is an afterthought and has come from an interested person. PW 9, a GB of the village, received the same criticism as he too did not inform the same to anybody. To believe RW 10, this GB had also worked for the petitioner, though RW 8 was not in know of it. PW 10 of course had brought the matter to the notice of the village Chairman, which statement is supported by PW 13, the Chairman. The acceptance of the pork by PW 10 was on being told that refusal would be a sin as per local custom. Though RW 10 stated about this witness also being a worker of the petitioner, RW 8 admitted that this GB, who is aged about 70 years and had been in office for about 40 years, had not worked for any political party to his knowledge. The fact that the GBs of the village in a body had not discussed about pork distribution cannot be a circumstance to disbelieve the witness as he had informed the Chairman of the Village Council, a higher body.

21. Coming to the evidence of Estorhomo PW 13, the same has to be taken with a grain of salt. The active interest shown by him in the petitioner does make him an interested witness. His evidence that the head of the pig was brought for him by Zuthungo is otherwise acceptable, because he being the head of the Village, the head of the animal did belong to him (as per custom), and as per RW 8 Zuthungo had worked for Mhao. The acceptance of the head was after the mother and wife of the witness had told that as per their custom refusal of raw meat may bring evil both for the offeror and offeree. Despite this, as there is no support from independent source (PW 13 being an interested witness), or from contemporaneous unimpeachable document relating to holding of an informal Village Council meeting to snub Mhao for the alleged act of distribution on which aspect even PWs 9 and 10 (who being GBs were supposed to be present in the Village Council meet being members of the same) have not directly supported Estorhomo, his evidence seems to be a puffed one containing statements to bolster up the case of the petitioner.

22. This is the state of affairs of the evidence of PWs. Corning to the other side, we find that the two GBs of the village, namely, Lithungo RW 8 and Ezung RW 12 have positively denied the distribution of pork and holding of any Village Council meeting in this regard. Their evidence has, however, some unnaturality in it. When the witnesses were asked as to whether they knew on what point their evidence was needed by the respondent and whether they had contacted Mhao after receipt of the summons, they wanted to keep themselves really too far away from Mhao. It is not believable that a witness being summoned by a party would not even know on what point his evidence was required, and he would have no talk about it at all with the person summoning him. The averseness in this regard has definitely caused, according to Shri Goswami, a dent in the trustworthiness of what has come out from the mouth of these witnesses, as, if they could be hesitant to accept the truth in apparent matters, their statements on important aspects should not be taken as full truth. Shri Gupta meets this criticism by submitting that these and other witnesses (including some of the petitioners) had said as above to make themselves look detached. He also submits that if talk with the concerned party is admitted, allegation of tutoring comes handy. Though there is force in the submission of both the learned counsel, the denial of apparent and natural course of conduct cannot altogether be ignored in assessing the real worth of the evidence of such witnesses. RW 10, who at some point of time was sought to be produced by the petitioner as his witness and for whom even summons had been taken out by him, did not know even by the evening of previous day of his giving evidence on what point his evidence was required. His effort to keep away himself not only from Mhao but from pork cannot also be missed. The statement that though Nagas rear pigs he had not seen any pig in the house of Lenthio and that some pigs were dying in the village during the period in question further exposes the interestedness of the witness for reasons to be stated below.

23. Lenthio is RW 11. The main theme of his evidence is that there could have been no question of his selling any pig as all his pigs had died due to some animal disease. Shri Goswami urges not to accept this part of the evidence of this witness (and of some other RWs) as none of the petitioner's witnesses had been asked any question in cross-examination regarding the spread of this type of epidemic, which would indicate that the story of pigs dying due to any disease was an afterthought.

Shri Gupta has met this criticism by saying that the respondent himself had not known earlier about this local affair because of which he could not instruct the counsel to cross-examine the petitioner's witnesses on this aspect. It cannot, however be forgotten that the respondent himself hails from Longsa village, and if any calamity would have overtaken the villagers (killing of pigs in wholesale would have been a calamity, as a pig is priced anything between Rs. 2,500.3,500/-), this must have come to the notice of the respondent. Shri Goswami has thus a valid point in criticising RW 11 (and some other RWs) on this score.

24. The evidence of RWs 12, 14 and 16 , may be disposed of together by pointing out that what has been stated above regarding RW 11 applies to them also. Further, RWs 14 and 16 have to be regarded as interested witnesses inasmuch as they are among the alleged distributors and RW 16 had also worked for Mhao in the election. Renthungo RW 30, who was also involved in the matter is the last witness of the respondent on this aspect and his is a case of denial. In normal course his testimony would have merited greater reliance as he conies from the fraternity of lawyers, but he too is an interested witness having worked for Mhao. His evidence that he had not taken any part in getting the electoral roll corrected on behalf of Mhao cannot be accepted because this has been testified by an absolutely independent person, the then Additional Deputy Commissioner PW 19. Then, his denial that in the procession which was admittedly taken out on 6-11-82 he had not seen Mhao is hard to swallow as the procession was, as has already been held, taken out for the benefit of Mhao in which he was very much present.

25. It thus transpires that here again there is oath versus oath. There are infirmities in the evidence led by both the sides. Some of the witnesses of both the sides are apparently interested. There is no particular mention about any distribution of pork in Ext. P/16 dt. 11-11-82, which is a contemporaneous document containing some allegations regarding the unfair practices adopted by the NNDP in the four Assembly segments of Wokha district. The pleading in this regard in para 6(7) is also to be regarded as a little vague inasmuch as it has not been stated for definite as to whether the distribution was by the respondent or by his election agent or by both. The averment that 'the respondent No. 1 and/or his election agent along with his workers/agents' distributed pork does not say for definite whether the distribution was by the respondent himself, or was by his election agent the latter is really a non-existent entity in the present case, as already discussed.

26. This being the position, it cannot be held that the petitioner has been successful in establishing this allegation of bribery beyond reasonable doubt. This issue therefore answers itself in favour of the respondent.

27. Issue No. X(i)-- Humtseo clan meeting:

In the petition two allegations were made in this regard in paras (10) and (11). The same are holding of two meetings at Pongitong village once on 19-10-82 and again on 27-10-82 in which different persons had participated and had collected persons of Humtseo clan and had asked them to support the respondent as he also belongs to that clan. Evidence was however led only for the meeting of 19-10-82. The allegation in this regard is contained in para 6(10) of the petition which states inter alia that the respondent himself had gone to that village and made the same appeal. In the evidence none of the PWs who were examined on this aspect said anything about the presence or appearance of respondent in that village on that day, not to speak of his having made an appeal on the score of clanism. Further, in the pleading relating to meeting on 19-10-82, Woremo alone has been specifically named who was said to have gone to the village 'together with agent and workers of Respondent No. 1'. Thus, the pleading does not name Renthungo specifically, Had Renthungo been in the mind of the petitioner his name would have definitely appeared in para 6(10), as Renthungo was taken to be an election agent of the respondent and his name does find place in many other paras. So, the attempt to rope in Renthungo has to be regarded as an act of embellishment.

28. This apart, the three witnesses examined by the petitioner on this-- they being PW 3 Kitsymo, PW 4 Nrio and PW 7 Meyimo have contradicted each other on many points. Though Kitsymo has stated that the meeting was forcibly arranged in his house when he had gone out for cultivation, this cannot be accepted as he had come back from cultivation at about 4 PM whereas the meeting had taken place at about 7/8 PM. Further, according to PW 4 he had been told about the meeting by none else than Kitsymo. Then, though PW 7 wanted to show his averseness about preaching of clanism by deposing that he had left the meeting when speeches were being made on narrow clan loyality line, PW 4 has stated that nobody among the participants had left the meeting when the deliberations were taking place. PW 7 showed his further exuberance by stating that the deliberations were so displeasing to Kitsymo that he asked the person to go away which is not even claimed by Kitsymo.

29. To counter the evidence of the petitioner, the respondent produced RW 4 Myamo (who according to PW 7 had attended the meeting), RW 5, Evomo, RW 7 Nchemongo, a brother of PW 3 Kitsymo, RW 13 Woremo himself and finally RW 30 Renthungo. These persons have denied any meeting of the persons of Humtseo clan having taken place in the house of Kitsymo at Pongitong on 19-10-82. Nothing has come out during cross-examination to disbelieve the testimony of these witnesses except that Shri Goswami submitted that the evidence of Woremo that he had not gone to Pongitong on the aforesaid date should not be believed as he had not produced the Log Book of the official vehicle which would have shown where the vehicle had gone on 19-10-82. The witness has explanation for it and the same is that he having been transferred from Wokha after the election to Limapur in a different capacity, could not have brought the same without being specifically ordered by the Court. The fact that for the official vehicle attached to him (NLG 2429) 10 litres of petrol were purchased on 19-10-82, as would appear from the cash memos produced by PW 24, would not mean that the journey must have been to Pongitong. The acquaintance of the witnesses with Kitsymo is also not enough to hold that in the latter's house Humtseo clan people must have been collected in presence of Woremo because the acquaintance of the witnesses with Kitsymo was not at personal level, but he had come to be known as the Chairman of the local Co-operative Society which Woremo had set up in the village as Assistant Registrar of Cooperative Societies, and whose office was put up in the house of Kitsymo.

30. In the aforesaid state of evidence, and there being absolutely nothing on record to hold that the respondent had in any way consented to the preaching of clanism, or that the clan propaganda had in any way materially affected the result of the election, this issue has to be answered against the petitioner and is hereby so done insofar as the first and third parts are concerned. On the second sub-issue, petitioner was almost ex concessions.

31. Issue-XI-- Excess of election expenses:

(A) Hiring of NLX 355 :

While alleging in para 6(16) of the petition crossing of election expenditure limit, which at the relevant time was Rs. 5,000/- in Nagaland for Assembly election but was shown at Rs. 1,165.65 by the respondent, the first allegation is that the respondent had hired vehicle No, NLX 355 from the Nagaland State Transport (NST) for a sum of Rs. 294/- on 25-10-82, which sum did not find place in his return (Ext. P/11). This bus was allegedly hired to take some youths of Longsa to a picnic towards Dayang. This was a part of electioneering to please the youtns, who while boarding the bus were said to be raising the slogan 'Vote for Mhao'. One non-official witness PW 11 has deposed about this. He has derived this knowledge from his brother (one of the picnickers), who has not been examined. Of course, the witness has stated that he had seen the youths boarding the bus and giving the aforesaid slogan. This fact alone has no offence in it as the vice lies in arranging the bus for taking voters to a picnic. As to the hiring of the bus, the two witnesses are PWs 17 and 18. According to PW 17, the respondent had contacted the NST on 25th itself, whereas PW 18 stated that Mhao had gone to his office on 24th for this purpose. Certain documents have been produced in this regard none of which has mentioned about the payment having been made by Mhao. PW 17 is the Cashier of office of the Station Superintendent (who is supposed to have received the payment) has clearly stated in cross-examination that his evidence that Mhao had footed the bill was out of memory. The only official document which could have thrown light in this regard is the carbon copy of the receipt in which the name of the payer finds place. As to this, PW 17 stated that the receipt books were destroyed after the accounts had been audited in Dec., 1983. PW 18, the Station Superintendent, also took the stand in the early part of cross-examination but when asked as to why the receipt book had not been sent when this Court had issued notice to cause production of some documents in Nov. 1983 (the alleged destruction having taken place after auditing in Dec., 1983), the Station Superintendent admitted that the receipt was not sent earlier as 'it was not immediately available'. He further stated that a 'copy of the counter-foil may be available in the office still now and might not have been destroyed as deposed by me earlier'. The above itself takes out the bottom from the testimony of the two witnesses that Mhao had paid the hiring charge of the vehicle. This apart, these two witnesses themselves had issued a certificate (Ext. R/2) to Mhao stating that the vehicle in question had not been hired by him on 25-10-82. The same set of people had issued a contrary certificate Ext. P/12 to the petitioner on 25-11-82. When asked about Ext. R/2, it was stated by the witnesses that the same was given under duress. It is difficult to accept the story of duress as Mhao had then gone alone to the office. Shri Gupta also mentions in this context that ft may not be forgotten that Shri R. Ezung, a brother of the petitioner, is the Secretary of the Nagaland State Transport Department and his influence might have been used to obtain Ext. P/12.

32.-33. In view of all the above, I would hold that the petitioner has totally failed to establish this allegation B. Use of five other vehicles for electioneering.

We now come to the most contested issue. The same relates to the expenditure on vehicles Nos. NIK 1528 (a jeep), NLK 2923 (also a jeep), NLK 2660 (a Jonga), NLK 7495 (a truck) and DED 1490 (still another jeep). According to the petitioner these vehicles were used by the respondent for his electioneering purposes and he had purchased POL worth Rs. 10,186/86 between the period from 16-9-82 to 10-11-82 from M/s. P. Ezung & Sons, Wokha which he had not shown in his return of election expenses. The averments in this regard have been met by the respondent in para 31 of his written statement, wherein after stating that the allegations are incorrect it has been stated as below : --

'I say that truck No. NLK 7495 is owned by me and the said vehicle is being a Tata truck and being unsuitable, was not used by me for my election purpose. The remaining vehicles NLK 1528, NLK 2923, NLK 2660 and DED 1490 were used by the party for all the candidates of the Wokha District and all expenses incurred in respect of those vehicles, like hire and repair charge, cost of petrol, diesel, oil etc. were borne by the NNDP. I say that Shri Pinyinthunge Chairman, N. N. D. P. (Wokha District Unit) and Shri Nyanpemo, General Secretary, N. N. D. P. (Wokha District Unit) and The Respondent No. 1 who was the Joint Secretary of the N. N. D. P. (State Unit) used party funds for purchase of petrol, H. S. D., oil etc. in respect of the said vehicles. I further say that the said vehicles were never at the exclusive disposal of the respondent No. 1 for his election campaign and the same were used by other NNDP candidates of the Wokha District as well as by the functionaries of the party. Besides the said vehicles were at times also used by the N. N. D. P. candidates outside Wokha District'.

34. The respondent has thus put in a specific defence which is, to put shortly, hiring of the aforesaid vehicles except NLK 7495 by the party and meeting of the necessary expenditure on POL, repairing etc. by the party. Further, as per the respondent these vehicles were used by other NNDP candidates of the Wokha district (and even by those outside the district) as well as by the party functionaries. The respondent has thus wanted to bring his case within the Explanation to Section 77 of the Act which was inserted by Act No. 58 of 1974. The main thrust of submission of Shri Goswami on this part of the issue has been that the hiring of the vehicles by the party is not tenable at all. This contention is met by Shri Gupta by first submitting that the respondent's case is well founded, and secondly by urging that in any case the petitioner has failed to discharge his burden by showing the exclusive user of the vehicles in question by the returned candidate and payment of the POL money by him. By referring to the law in this regard, which has been set out above, Shri Gupta submits that the duty of the Court when two versions are put is to weigh the same and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal (by the returned candidate) a reasonable person can form the opinion that on the evidence the charge is satisfactorily established' as stated by the Supreme Court in Chenna Reddy's case, (1968) 40 ELR 390 at page 415.

35. Shri Goswami was fair in stating that if the respondent's case as regards hiring of the vehicle has to find acceptance, it would follow that the necessary expenditure on POL etc. had also been borne by the party, in which situation the petitioner's case would have no legs to stand. Let us therefore first examine the credibility of the counter-case. While doing so it has to be remembered that the standard of proof in this context cannot be as heavy as is placed on an election petitioner alleging corrupt practice. The counter-case of the present naure has to find acceptance if the same satisfied the yardstick of preponderance of probabilities.

36. The most important witnesses regarding hiring of vehicles are RW 25 Pinyinthung Lotha, who at the relevant time was the Chairman of the Wokha Divisional Unit of the NNDP, and PW 31 Nyanbemo Lotha who was the General Secretary of the Unit. These functionaries, apart from the respondent himself, have made certain statements in this regard, so also some other party officials or members. Let us start with the version of the respondent who has appeared as RW 1. It may be stated that at the relevant time he was the Joint Secretary (Organisation) of the State Unit of the Party. According to him there was an Election Committee at the State level to foster the election prospect of all the candidates. This Committee had taken a decision to make funds 'available to all Divisional Unit to pay for POL and hiring charges of the vehicles'. The statement would show, as per the counsel for the petitioner, as if a State-level decision was taken to encourage hiring of vehicles by all the Divisional Units of the party.

37. Shri Goswami contends that if this was the position there would have been no occasion for RW 25 Pinyinthung to take a decision by the last week of Sept., 1982 on his own to hire vehicles in question after having seen 'swarm of vehicles and helicopters' as stated by Nyanbemo RW 31. Shri Gupta has countered the basic urge of Shri Goswami's argument by stating that when Mhao said about the decision of the State-level Election Committee to make funds available to all Divisional Units of the party to meet the expenditure of POL and hiring charges of the vehicles, he might not have been really fully aware of the correct position as he was not a member of the Election Committee. Reference is made to the evidence of PW 16 Kinghem who was a member of the Election Committee and who stated that no decision was taken at the State-level to give funds to the Divisional Units for the aforesaid purpose. In between the two statements of RW 1 and RW 16 on this aspect, what has come out from PW 16 has to be accepted as his knowledge is more direct. Moreover, the aforesaid statement of RW 1 does not really mean that the State Unit of the party had decided that all Divisional Units should hire vehicles, but only that if vehicles are hired by them funds would be made available.

38. Let it therefore be seen whether any real occasion arose for the Wokha Divisional Unit to take a decision relating to its own unit to hire vehicles. According to the Chairman, this had to be done as he had seen the Congress Party using many vehicles, and so, as a Chairman of the Unit, whose position, according to him, 'is akin to an army commander' he himself decided that the NNDP should also hire vehicles. He then informed the Secretary about the matter and asked him to contact vehicles owners. As already noted, according to the Secretary there were swarm of vehicles and helicopters on the side of the National Party against which they were pitted. Shri Goswami states that the Congress Party had put in 4/5 vehicles including the two pressed into service by the petitioner himself, as has come out from the evidence of PW 24 K.D. Patel, and as such the story of 'swarm of vehicles' is being given now as a pretext to support the decision which was never taken. Whether there was swarm of vehicles or not (helicopters, of course, must have come later when the Prime Minister visited Wokha town on 22-10-82), it stands to reason to believe that having been required to fight a national party, the regional party might have found itself confronted with a more compact and bigger electioneering propaganda machinery. It is admitted even by PW 24 that he had seen some vehicles having come from Delhi for use of the Congress Party. In such a situation, if a local decision was taken to hire some vehicles it cannot be held that the reason for hiring was non-existent and so the story should not be believed on this ground alone.

39. In support of the case of hiring of the vehicles by the party (which excludes NLK 7495), a volume of evidence, oral as well as documentary, has been brought on record. As to the documentary evidence, reference may first be made to Exts. R/3, R. 4 and R/5. The first of these three documents is dated 27-9-82 and is a communication from the Chairman of the Divisional Unit to the Secretary stating that the party requires 'one vehicle for each Assembly constituency' and one for party officials. The Secretary was, therefore, requested to arrange the same. Ext. R/4 is a letter by which the Secretary informed the Chairman on 30-9-82 that he could manage to get only 4 vehicles mentioned in the letter. The Chairman was requested to find out ways and means to meet the hire charges and other expenses. Vide Ext. R/5 (dated 30-9-82), the Secretary wrote to the different owners of the vehicles that the party had accepted their demand regarding hiring and other expenses and the owner were requested to hand over the vehicles on 1st October, 1982. Of these three documents, copies of Exts. R/4 and R/5 had been filed by the respondent when date was fixed for taking steps. The documents as exhibited however came to be produced in the Court by RW 31 in pursuance of the notice sent to the State Unit as well as to the Secretary of the Divisional Unit in July, 1983. It may be mentioned at this stage that after the elections were over, the Divisional Units were re-organised (sometime in April, 1983) and both the Chairman and the Secretary of the Wokha Divisional Unit were changed -- instead of Pinyinthung, T. Kikon became the new Chairman, and in place of Nyanbemo came Shri Kinghen. The new Secretary of the Divisional Unit should have, been really concerned to forward the necessary papers to this Court but the evidence of RW 31 shows that it was he who took more interest. Shri Goswami, therefore, contends that this itself shows over-enthusiasm on the part of Nyanbemo who admitted his friendly terms with Mhao despite the latter's defection to the Congress Party. This, however, is not very material as personal friendship does sometimes last despite odds of political life. The important question is whether documents like Exts. R/3, 4 and 5 can really be taken to have been written in normal course of official work, or they were manufactured subsequently, Shri Goswami strongly submits that there would have been absolutely no occasion to put the decision regarding hiring of vehicles in writing and that too by the Chairman to inform about the same to the Secretary both of whom were occupying the same part of the office premises during the relevant time. It is mentioned in this regard that the party has failed to produce any other correspondence between the officials on any other matter relating to electioneering expenditure. Shri Gupta contends that as hiring of the vehicles was to cost the party Rs. 8000/-in payment to the owners only, apart from expenditure on POL etc., and as the Executive Committee or the Finance Committee of the Unit had not met due to the pressure of the election work, it was thought prudent to put this matter on record. If the evidence of the Chairman that for spending out of the election fund he was not accountable to any body is remembered, the necessity of having correspondence like Exts. R/3 and 4 becomes less convincing. If any assurance was required about the authenticity of the expenditure, the receipt relating to payment would have been enough, so also a copy of the letter to the owners that their vehicles were being hired, in which letter one would have of course accepted the amount of the hiring charges which, however, is found missing in Ext. R/5. Exts. R/3, 4 and 5, therefore, do not inspire full confidence. In coming to this conclusion, I have excluded from consideration the submission of Shri Goswami that Ext. R/3 could not have come from the custody of the then Chairman from whom it was collected by RW 31, as the latter was addressed to the Secretary and so the original must have been with the new Secretary. This submission was advanced as the document (as exhibited) was said by RW 25 to have been originally with him, which as per the counsel could not have been. Some assistance is also derived from Ext. R/22 wherein the document exhibited as R/5 only has been described as copy, indicating thereby that the two other documents (Exts. R/3 and 4) were original. I have myself looked into Ext. R/ 3 and it does look like a carbon copy. Then, the aforesaid evidence of RW 25 does not mean that he had the original with him, but only that the document exhibited in the Court was originally (i.e. initially) with him.

40. To buttress the case of hiring and meeting POL expenditure on the four vehicles by the party, reliance is placed on receipts given to the owners, which have been marked as Exts. R/21(1) to 21(3). The attack on the genuineness of these exhibits is on the ground that no copy of the same had been filed by the respondent when the date was fixed for taking steps. It may be stated that of the four vehicles, two (NIK 1528 and NIK 2660) belonged to Pisamo, an elder brother of the respondent, and as such it is only reasonable to accept that the latter must have known about the existence of the receipt given to Pisamo. This apart, the owners have produced even the letters written to them regarding hiring of their vehicles, a copy of which was exhibited as Ext. R/5. Now, no convincing reason has come forward to satisfy the Court as to why the owners should have preserved letters like Ext. R/5 (these having been exhibited as Exts. R/23, 24 and 25) when it does not even mention about the amount of hiring charges. When the owners (RWs 27, 28 and 29) were questioned about the need to preserve such a letter they did not fare well as they could not give any proper explanation about the necessity to keep these letters in the files wherein they had kept papers like licence of the vehicles, permit, registration certificate, token tax etc. Exts. R/23, 24 and 25 cannot be placed in the category of the aforesaid papers. A look at Ext. R/24 shows that it has even scribblings on its back. I would therefore take the authenticity of these papers including the three receipts with great reservation.

41. Finally comes Ext. R/20, a register showing the income and expenditure account of the Wokha Divisional Unit during the general elections of 1982. The Chairman RW 25 himself produced this vital document, of which none else was aware earlier, not even the Secretary RW 31 before he had seen this in Gauhati when the Chairman had brought this for production in the Court. The evidence of the Chairman regarding register is that he used to note down the account on loose papers as he could not put the same in a register in the heat of the electioneering. Subsequently, he opened the register on 26-11-82 (the result of the election having been announced on 12-11-82) and made the necessary entries in the register on 27-11-82. On the first page he showed the income, on the second the consolidated expenditure, and on the third some details of the expenditure. The authenticity of this register is strongly assailed by Shri Goswami. According to him, this document was manufactured subsequently to boost up the case of the respondent, despite whose defection to Congress Party the Chairman thought it safe to express no opinion on this political question. It is contended that the Divisional Unit had not received fund as depicted in the first page of the register. As to the receipt of Rs. 25,000/- from Shri Jasokie, who was then Chief Minister of Nagaland and Chairman of the Finance Committee of the State Unit, it is stated that had it really been so the respondent could have well produced the register in which the Chairman (of the Divisional Unit) had signed as a token of having received the amount, as stated by him, which was not done. In so far as the sum of Rs. 60,000/- from the party High Command is concerned, the criticism is that if of this amount a sum of Rs. 40,000/- was kept in the account of PW 16 Mr. N. Kinghen, as is the case of the respondent, it was only natural that when Kinghem was in the witness box he would have been asked about the same, but nothing of the kind was even whispered to that witness. It may be stated that Mr. Kinghen was an important party functionary at the relevant time as he was a member of the State Election Committee and the Chairman of the Finance Committee of the Divisional Unit and subsequently became Secretary of the Wokha Divisional Unit. This witness was not also asked if a sum of Rs. 9,000/- was left in his account after withdrawal of the remaining amount, as stated by RW 25 and mentioned in page 2 of the register. Nobody of the party High Command or State Unit has been examined in the case to depose about payment of money to this Divisional Unit. Even the messenger who is said to have brought the sum of Rs. 60,000/- in cash was not produced by the respondent. Though the Chairman had deposed that the Executive Members knew about the receipt of Rs. 60,000/- from party High Command, RWs 17, 20 and 23 who were such members could not endorse this.

42. The following facts and circumstances cause further dent to the case of the respondent in this regard :

(1) If the party would have hired the vehicles to foster the cause of all the candidates of the district, it is natural that other candidates must have been informed about the same, and if this had been done those candidates must have come forward to utilise the services of the vehicles. There is however evidence to the contrary coming from the mouths of PWs 14 and 15.

(2) Apart from the candidates, other party officials of the Area and Constituency Units must have also been informed about the same and that too in writing (instead of leaving it to chance to inform them as and when they used to come to the party headquarters at Wokha). Far from doing this, we get from RW 17, who is the Chairman of Nero Area Unit, that he came to know about the hiring of the vehicle only on 6-11-82 when he had come to Wokha town in connection with the procession of the party whereas electioneering itself was to end by the evening of 8th Nov., 1982.

(3) If four vehicles were meant for each of the four constituencies, as has been stated in Ext. R/3, it stands to reason to accept the submission of Shri Goswami that each Assembly constituency headquarters must have been provided with one vehicle instead of keeping all the four at Wokha town which led to the situation that outside party officials had to come to Wokha town to requisition the vehicle and the vehicle going to the required place used to come back to Wokha town thereby shuttling each day. It may be stated that though the Chairman desired five vehicles (one for each constituency and one for party officials) the Secretary could get four, but then at the relevant time there was another vehicle of the Chairman which was initially unregistered but was registered subsequently as NLM 1135, and was with the Chairman almost throughout for his exclusive use, for which, to believe the Chairman, the party had to spend a sum of Rs. 10,000.00 as it got damaged during the election.

(4) A great shift from the written statement is discernible in case of the use of the hired vehicles. According to the pleading of the respondent, the vehicles were as if meant mainly for use by party candidates -- the

party functionaries coming tangentially. The evidence however is to the contrary. The party officials occupy the centre of this stage; the three other candidates are not much to be seen even in the side winds. According to Shri Goswami this shift became necessary as PWs 14 and 15 (two of the remaining three candidates) had denied any use of these vehicles.

43. Because of all these, I am not satisfied about the truthfulness of the hiring of the vehicles by the then party of the respondent. But this is not all. The weakness of the returned candidate's case cannot sound death-knell to his victory. The person challenging the election has to satisfy the Court beyond reasonable doubt that his allegation in this regard is true. There is no denial of dispute that the burden in this regard is akin to that of a criminal trial which aspect has already been noted. Even a strong suspicion in this regard is not sufficient and the charge of corrupt practice has to be established not by a mere preponderance of probabilities but by higher degree of judicial certitude, as is needed in a criminal action; as a natural corollary of this, benefit of doubt belongs to the returned candidate.

44. To succeed in this regard the election petitioner has first to show that the five vehicles were exclusively used by the returned candidate. Though there is total denial about the use of NLK 7495 by making averment in para 31 of the written statement (quoted above) that this vehicle being a truck was not suitable and was not used for election purpose, Shri Goswami urges, and rightly, that had it been so, the respondent would not have mentioned about expenditure on diesel or HSD in the written statement, as none of the other four vehicles was diesel propelled one. Some strength is also derived in this regard from a voucher enclosed along with the return of election expenses filed by the respondent (Ext. P/11) in which there is a cash memo showing purchase of HSD on 27-8-82 for NIK 2495. It is also brought to my notice that a truck could go to some villages of the constituency as admitted by RW 1 and some of his other witnesses.

45. Despite all these, it has first to be seen whether expenditure incurred on 27-8-82 (or for that matter from 16-9-82 which is the date of terminus a quo as given in this regard by the petitioner) can at all legally be said to be an election expense as visualised by Section 77 of the Act. That section requires a 'candidate' to keep a separate and correct account of all expenditure in connection with the election incurred between 'the date on which he had been nominated and the dale of the declaration of the result thereof, both dates inclusive'. This found place in the section by virtue of the Act 40 of 1975 which made certain amendments in the phraseology of this section, as well as in the definition of the expression 'candidate' as finding place in Section 79(b) of the Act. This amended section had come up for consideration in N. Ibomcha Singh. v. L. Chandramani Singh, AIR 1977 SC 682, where after noting the fact of amendment it was stated that any expenditure incurred before the date on which the nomination papers was filed could not be counted as election expenses. In the present case, the nomination papers were filed by the respondent on 14-10-82 and there are only three items in the return of the expenses as filed by the respondent which relates to the period beyond 14-10-82. Shri Goswami who himself fairly drew my attention to this decision states that the Apex Court had no full occasion to interprete the expression 'duly nominated as a candidate' as it found place in Section 79(b) after its amendment in 1975. According to him, this date could still be the date on which the party had finally decided to put up the candidate and nominated him as such. But in view of the amendment made in the definition of the word 'candidate' by Act 40 of 1975 which deleted the words 'and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate', and in view of the aforesaid decision of the Supreme Court, this submission of Shri Goswami cannot be entertained. Despite this, it has to be stated that the case of the respondent in this regard as put in the written statement is not wholly correct as the purchase of the aforesaid POL does show that NIK 7495 was used for some election purpose; may be that the expenditure is not required to be included in the return of election expenses. The admitted requisition of this vehicle by the Government to carry the polling staff would also show that the terrain was not such as to make a truck totally unserviceable for election purposes.

46. This, however, is not material for our purpose as most of the PWs have deposed about four other vehicles, three of which were jeeps and the fourth a jonga. The PWs who have come forward to give evidence in this regard have spoken about their having seen these vehicles either with the posters reading 'Vote for Mhao', or use of vehicles NIK 1528 and NIK 2660 belonging to Pisamo (an elder brother of the respondent) by Mhao in earlier general elections of 1974 and 1977. The mere fact that these two vehicles were used by Mhao in earlier elections would not be conclusive for our purpose, though it would lend some assurance to the petitioner's case which has to be examined by scrutinising the testimony about the use of these vehicles for the election in question. On this aspect, there is a partial admission by Mhao. He has stated that after his declaration as candidate in July 1982 he had started his electioneering and had made visits to certain villages of his constituency, and he had then mostly used NIK 1528 when travelling alone. Pisamo has, however, denied even this use which shows according to Shri Goswami the interested nature of Pisamo in trying to shield his brother as far as possible.

47. But as stated earlier, we are concerned in this regard with the expenditure incurred from 14-10-82. As per the account submitted by the petitioner if the expenditure is counted even from this date for the five vehicles till 12-11-82 (which was the date when the results were declared) the expenditure would come to much more than Rs. 5000.00. These statements have been prepared on the basis of the cash memos exhibited by PW 24 K.D. Patel who was the Manager of the petrol pump in question. The basic assumption underlying these statements is that all these payments must have been made by Mhao. Now, in so far as payment is concerned, the only evidence is of Patel who has stated that he had been Mhao himself driving some of the vehicles in question. He specifically named NIK 2660 and NIK 1528 in this regard. He further stated that the payment for petrol for these vehicles used to be made by Mhao when he used to come in these vehicles, and on other occasions the driver of the vehicles used to pay. When he was asked in cross-examination whether he could depose by reference to the cash memos before him (on the basis on which the Cash Book in question (Ext.P/31) was prepared) as to which of these memos had been cleared by Mhao, he stated that it was not possible to give any positive statement in this regard. It thus follows that in so far as payment is concerned, Mr. Patel (even if he is believed fully) involved the respondent only in so far as NIK 2660 and NIK 1528 are concerned, and that too not fully. If a reference is made to the chart given by the petitioner, and if attention is confined to these two vehicles, the total expenditure on them comes to Rs. 2,908.58, if counted from 14-10-1982 up to 12-11-82 to the latter of which date Shri Gupta has objection as in the pleading the terminus ad quem has been mentioned as 10-11-82 from which departure is not permissible as per the learned counsel. To this, if we add the three items of expenditure shown in the return of election expenses for the period after 14-10-82 (which comes to Rs. 533.90), the total expenditure comes to Rs. 3442.48 which is below the limit fixed by law. Even if the entire returned amount of Rs. 1,165.65 is counted, the total would still be less than Rs. 5,000.00.

48. Shri Goswami urges that the Court may not confine its attention to these two vehicles only, as the case of the respondent regarding hiring of the vehicles by the party having failed it is reasonable to presume, when user of the vehicle is admitted by the respondent, that payment must have also been made by him. Here there are two flaws. First, the respondent has not admitted exclusive user of the vehicle by him and the evidence led by the petitioner also does not conclusively establish the same. The Supreme Court had occasion to refer to the question of extent of user in two of its occasions to which my attention is invited by Shri Gupta. The first is that of Smt Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 (para 243) and N.C. Zeliang v. Aju Newmai, AIR 1981 SC 8 (para 14). The fact that the vehicles were not hired by the party would not lead to the only conclusion that they were exclusively and wholly used by Mhao at all times. To rely on circumstantial evidence in this regard, the same has to exclude all reasonable hypothesis as mentioned in para 33 of Om Prabha Jain v. Charan Das, AIR 1975 SC 1417. Mere preponderance of probabilities would not do here also as observed in para 32 of Magraj Patodia v. R.K. Birla, AIR 1971 SC 1295.

49. What is more important is that even if full user by Mhao is assumed, the question still remains as to who made the payment. Shri Goswami would say that there could not have been anybody else to foot the bills than the respondent. Shri Gupta submits that there can be no such sequitur. He strongly relies in this connection on Om Prabha, (AIR 1975 SC 1417) (supra) and refers to para 33 in particular wherein despite some circumstances to indicate that the expenditure on the vehicles in question must have been incurred by the returned candidate, this conclusion was not arrived at because there were some circumstances to indicate the contrary also. In the present case, the evidence of K.P. Pate) (P.W. 24) has been that on occasions payments, had been made by drivers when Mhao was not to be found in the vehicles. Relying on this statement, it is contended for the respondent that it may as well be that these payments were being made through the drivers by some friends, well-wishers and relations of the respondent In this connection, reference is also made to the evidence of the respondent (RW 1) that when he had used the vehicle of his brother the money for the POL used to be given by the brother. In Om Prabha's case a question was asked by the Counsel that even if on the facts of that case a conclusion could not be arrived at that Duni Chand had paid for the jeep from the money he had received from the respondent (the returned candidate) or that the respondent had authorised the expenditure it would be hardly possible ever to get hold of direct and better evidence in an election dispute, the reply of the Court was that '(t)hat may be so, but this is how the law stands'. This observation was made pointing out that the charge of corrupt practice cannot be decided on the probabilities but has to be established beyond reasonable doubt Much of this can be, and has to be said, for the present case. Though Shri Gupta has made mention about omission of the allegation of having 'caused authorised to purchase the POL in the issue as framed' which was averred in the petition, (while the issue speaks only of purchase by the respondent), this contention has not been borne in mind by me in answering this issue, as this has not impressed me much.

50. This being the position on facts as well as in law, no conclusion can be arrived beyond reasonable doubt that the vehicles in question had been wholly and exclusively used during the election period by Mhao, and further that all the money for POL etc. had come from Mhao, As such, it has to be held that the petitioner has failed to establish beyond reasonable doubt his allegation of incurring of expenditure beyond the limit fixed by law. So, issue No. XI is answered in favour of the respondent except that there is evidence of some user of vehicles mentioned in sub-issue (c).

51. Conclusion.

The petitioner having failed to establish the aforesaid corrupt practices as required by law for the reasons alluded, and no other issue having been pressed before me, the petition stands dismissed. In the peculiar facts and circumstances of the case, I leave the parties to bear their own costs.

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